Overview

It’s close to axiomatic in California HOA law that only members may vote in HOA elections. Homeowner-side attorneys say it, HOA-side attorneys say it, and the Davis-Stirling Act says it. Yet a powerful exception cuts straight through that rule, and far too many attorneys on both sides, all of whom should know better, seem to be ignorant of that glaring exception. A person who holds a general power of attorney (sometimes referred to as a POA) for a member has a statutory right to vote that member’s ballot even though the agent owns nothing in the development and isn’t a member at all.

That right comes from a 2020 amendment to the Davis-Stirling Act, and far too many HOAs forget it exists. So when a member’s agent shows up to vote, a lot of HOAs (by and through their inspectors of election) reach for the rule they do remember, and that rule runs the opposite way. I’m referring to the statute on proxy voting, which allows a member to appoint another member to cast their vote. Ignorant HOAs lean on that member-only limit to turn such agents away, claiming that the law only allows members to vote in HOA elections. The proxy statute, however, has nothing to do with the statute governing powers of attorney. The former requires the agent to be a member, but the latter doesn’t.

Even if the POA’s right to vote for the member is not in dispute, there are still two closely related questions that often pop up, and both are worthy of discussion. The first is whether the agent who votes may also attend the meeting where the HOA counts the ballots (or other board meetings for that matter). No statute grants that right outright, but the right to vote carries a strong argument for it. The second is whether the agent can go a step further and serve on the board. There the answer is no. Voting a member’s ballot and holding a director’s seat are different rights, and the Davis-Stirling Act grants the first while denying the second.

This Fact Sheet explains when a power of attorney holder may vote a member’s ballot, why the proxy rules don’t affect that right, a holder of a power of attorney can vote on behalf of the member, but can’t sit on the board, and how far the right to attend meetings reaches. It also gives homeowners a direct response when an HOA refuses to count the ballot.

Key Points

A general power of attorney holder’s right to vote a member’s ballot isn’t a gray area. Since January 1, 2020, the Davis-Stirling Act has spelled that right out in plain English, and an HOA that refuses to count such a ballot is breaking the law. The points below explain where the right comes from, why many HOAs (and even a lot of ignorant HOA attorneys) seem to be ignorant of that law, and why the scope of the POA is critical. The points below also resolve the two questions that follow once the ballot right is settled, which are whether the agent may attend HOA meetings and whether the agent may serve on the board. Read together, they give a homeowner enough to force an HOA to either count the ballot or face a losing battle in court.

• The holder of a general power of attorney has a statutory right to vote the HOA member’s ballot. Contrary to what even the most well-known HOA-side law firm currently has published on its website, the Davis-Stirling Act prohibits an HOA from denying a ballot to a person who holds a general power of attorney for a member. That same statute also requires the HOA to count that ballot when the agent returns it on time. The Legislature added this protection through a 2020 amendment of Civil Code 5105, and it applies whether or not the agent is a member of the HOA. In fact, even though a lot of HOAs have never bothered to amend to their election rules accordingly, Civil Code 5105 explicitly requires HOAs to state those two requirements directly in their election rules. So when an inspector of elections refuses to issue the agent a ballot, or sets the agent’s ballot aside instead of counting it, that refusal violates Civil Code 5105.
  • The power of attorney has to be broad enough to reach HOA voting. Civil Code 5105 protects a general power of attorney, meaning one that authorizes the agent to act across the member’s affairs rather than for a single isolated task unrelated to HOA voting. A general power of attorney comfortably covers voting the member’s HOA ballot. A power of attorney that authorizes only one narrow act unrelated to governance, such as managing a bank account, won’t carry the voting power. The strength of the right depends on the strength of the document behind it. [One nuance cuts the other way. Civil Code 5105 protects a “general” power of attorney, which raises a fair question about a power of attorney a member signs for the single purpose of authorizing HOA voting. By definition, a document limited to that one issue is special or limited, not general, yet it grants the exact authority the statute was written to protect. Reading the law to shield a broad power of attorney that never mentions voting, while rejecting a narrow one drafted specifically to grant that very power, would defeat the statute’s purpose. The sound position, therefore, is that a power of attorney expressly conferring the HOA member’s voting power qualifies, whatever label it carries. Now, no published decision has squarely resolved this, so a member who wants no friction is best served by a general power of attorney, or by one drafted broadly enough to read as general while also naming the voting power.]
• The proxy rules have no effect on the rights of an agent to vote for the member. In our experience, HOAs that reject holders of POAs from voting for a member typically point to the proxy rules and the requirement that a proxy be another member. That requirement is real, and it says exactly what these HOAs claim it says. But the proxy rules are found in a different statute, Civil Code 5130, which governs proxies and nothing else. A proxy and a power of attorney, therefore, are completely different instruments created by different statutes. Civil Code 5130 does indeed require proxyholders to be members. But Civil Code 5105 imposes no such requirement on the holder of a power of attorney. The member-only limit on proxies therefore says nothing about the ballot right a general power of attorney carries, and an HOA can’t borrow a restriction from one statute to defeat a right granted by another.
• The holder of the power of attorney has a strong argument to attend the meeting where the HOA counts ballots. Interestingly, Civil Code 5105 is silent on whether the holder of a POA may attend open board meetings, including the meeting set to count the votes in an election. So the question becomes whether an agent has that right. And the answer seems to rest on the voting right itself, not on a separate attendance right. You now know that Civil Code 5105 lets the agent vote the member’s ballot. And nothing in the law requires that vote to arrive by mail. Indeed, HOA members have always been free to bring their ballots to the meeting where the votes are to be tallied and vote in person. If the member can do that, then so can the holder of the power of attorney voting in the member’s place. In short, an HOA can’t acknowledge an agent’s right to cast a member’s ballot based on a general POA, but then deny that same individual the ability to cast that ballot in person at the meeting. To allow that would permit an HOA to illegally limit a member’s voting right to “mail only.”
  • The same logic reaches the HOA’s other board meetings, not just the election meeting. A member who hands voting authority to an agent expects that agent to vote intelligently, and an agent can’t vote intelligently while shut out of the meetings where the HOA debates the budgets, the candidates, and the issues the vote will decide. The right to vote carries with it the ability to cast an informed vote, and an HOA that bars the agent from its meetings strips the agent of the information any responsible voter needs. Civil Code 4925 already gives members the right to attend board meetings, which sets the baseline the holder of the POA stands on when arguing to attend in the member’s place. [This argument runs on implication rather than express statutory text, so an HOA may resist it harder than it can resist the ballot right itself (which is absolute). The homeowner’s firmest footing is the election meeting, where the live-vote logic above leaves the HOA almost no room. The broader right to attend routine board meetings draws real strength from the purpose of the voting right.]
• The agent can vote the ballot but can’t serve on the HOA board. While non-member holders of a general POA have the absolute right to vote on a member’s behalf, that right doesn’t extend to sitting on the HOA’s board of directors in the member’s place. Civil Code 5105 requires an HOA to disqualify any candidate who isn’t a member at the time of nomination, and it forces out any director who later stops being a member. A power of attorney holder is the member’s agent, not a member, so the same statute that protects the agent’s ballot keeps the agent out of a director’s seat. Casting a member’s vote and holding office are different rights, and the law grants one while withholding the other.
• If an HOA/inspector tries to prevent a holder of a general power of attorney from voting, hand over the power of attorney and make the HOA/inspector identify the legal basis for any refusal. A homeowner who meets resistance should give the HOA and its inspector of elections a copy of the power of attorney along with a short written demand that the agent’s ballot be issued and counted under Civil Code 5105. The demand should ask the HOA to identify, in writing, the exact statute or governing document provision it’s relying upon to reject the ballot. The same written approach works for meeting attendance, where the homeowner asks the HOA to state its basis for excluding an agent the law allows to vote.
• If your efforts to reason with the inspector fails, call the HOA attorneys at MBK Chapman. When an HOA/inspector refuses to count a power of attorney holder’s ballot or shuts the agent out of meetings, the HOA attorneys at MBK Chapman can force the issue. They’re generally considered the most experienced and effective homeowner-side HOA attorneys in California. If your HOA is ignoring Civil Code 5105, contact MBK Chapman today.

The Davis-Stirling Act settled the core question years ago. A holder of a general power of attorney may vote the member’s ballot, and an HOA that refuses to count it is breaking the law. It’s that simple. The scope of the document controls, so a member who wants no argument should sign a power of attorney broad enough to carry the voting power and hand the HOA a copy before the ballots go out. From there, the agent holds a powerful claim to attend the meeting where the HOA counts the votes, a strong implied claim to attend the HOA’s other meetings, and no claim at all to a seat on the board. A homeowner who knows those lines, cites Civil Code 5105 by name, and demands a written explanation for any refusal puts the HOA in a corner it can’t argue its way out of. Most HOAs back down once they’re forced to name a statute that doesn’t exist, which is why these disputes rarely need a judge to resolve them.

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About Michael Kushner

Michael Kushner is a California attorney with over 30 years of experience representing homeowners in disputes with their HOAs. He is widely regarded as California’s leading homeowner-side HOA attorney, and has built one of the state’s most prominent law practices dedicated to holding HOAs accountable under the Davis-Stirling Act and California law.

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